Citation Nr: 0202395
Decision Date: 03/14/02 Archive Date: 03/25/02
DOCKET NO. 01-04 947 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUES
1. Entitlement to service connection for a cervical spine
disorder.
2. Entitlement to an increased rating for degenerative joint
disease of the lumbosacral spine with sciatic neuropathy,
currently evaluated as 20 percent disabling.
3. Entitlement to an increased rating for residuals of a
right medial malleolus fracture with internal fixation,
currently evaluated as 20 percent disabling.
REPRESENTATION
Appellant represented by: The American Legion
WITNESSES AT HEARING ON APPEAL
Appellant and his spouse
ATTORNEY FOR THE BOARD
John Kitlas, Associate Counsel
INTRODUCTION
The veteran served on active duty from October 1971 to
November 1987.
This matter is before the Board of Veterans' Appeals (Board)
from a May 1999 rating decision by the Department of Veterans
Affairs (VA) Regional Office (RO) in St. Petersburg, Florida,
which denied service connection for a cervical spine
disorder, and granted increased ratings of 20 percent for
both the veteran's degenerative joint disease of the
lumbosacral spine with sciatic neuropathy, and his residuals
of a right medial malleolus fracture with internal fixation.
The veteran provided testimony at a personal hearing before
the undersigned Board Member in November 2001, a transcript
of which is of record. In conjunction with and following his
hearing the veteran submitted additional evidence to the
Board accompanied by a waiver of initial consideration by the
RO pursuant to 38 C.F.R. § 20.1304(c).
As an additional matter, the Board notes that the veteran
indicated at his personal hearing that he had stopped working
because of his combined medical conditions. (Transcript p.
16). However, he stated that he had never filed a claim of
entitlement to a total rating based upon individual
unemployability (TDIU). He also indicated that he had
recently filed claims of entitlement to service connection
for depression, insomnia, anxiety, and stress secondary to
his service-connected low back disorder. (T. p. 20).
Nevertheless, the documents assembled for the Board's review
does not show that such a claim was filed. The Board finds
that the veteran has raised claims of secondary service
connection for a psychiatric disorder and a total
compensation rating based on individual unemployability.
Accordingly, these claims are referred to the RO for
appropriate action.
FINDINGS OF FACT
1. All reasonable development necessary for the disposition
of the issues on appeal has been completed.
2. The evidence on file reflects that the veteran was
treated for neck problems on multiple occasions during his
active service. However, the preponderance of the medical
evidence is against the finding that his current cervical
spine disorder is causally related to his period of active
duty.
3. The veteran's low back disorder is manifested by severe
symptoms of intervertebral disc syndrome, with recurring
incapacitating attacks and intermittent relief therefrom.
4. The veteran's residuals of residuals of a right medial
malleolus fracture with internal fixation is currently
manifested by constant pain and marked limitation of motion
of the right ankle. However, there is no competent medical
evidence on file which shows that it is currently manifested
by ankylosis.
CONCLUSIONS OF LAW
1. Service connection is not warranted for a cervical spine
disorder. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West
1991 & Supp. 2001); 38 C.F.R. § 3.303 (2001); 66 Fed. Reg.
45620-45632 (August 29, 2001) (codified as amended at
38 C.F.R. § 3.159); Veterans Claims Assistance Act of 2000,
Pub. L. No. 106-475, 114 Stat. 2096 (2000).
2. The criteria for a 40 percent rating for degenerative
joint disease of the lumbosacral spine with sciatic
neuropathy are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107
(West 1991 & Supp. 2001); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3,
4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003,
5010, 5292, 5293 (2001); 66 Fed. Reg. 45620-45632 (August 29,
2001) (codified as amended at 38 C.F.R. § 3.159); Veterans
Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat.
2096 (2000).
3. The criteria for a rating in excess of 20 percent for
residuals of a right medial malleolus fracture with internal
fixation are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107
(West 1991 & Supp. 2001); 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.40,
4.45, 4.59, 4.71a, Diagnostic Codes 5270-5274 (2001); 66 Fed.
Reg. 45620-45632 (August 29, 2001) (codified as amended at
38 C.F.R. § 3.159); Veterans Claims Assistance Act of 2000,
Pub. L. No. 106-475, 114 Stat. 2096 (2000).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
On November 9, 2000, the Veterans Claims Assistance Act of
2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000)
(codified as amended at 38 U.S.C.A. § 5100 et seq. (West
Supp. 2001)) became law. VA has also revised the provisions
of 38 C.F.R. § 3.159 effective November 9, 2000, in view of
the new statutory changes. See 66 Fed. Reg. 45620-45632
(August 29, 2001). This law redefined the obligations of VA
with respect to the duty to assist and included an enhanced
duty to notify a claimant as to the information and evidence
necessary to substantiate a claim for VA benefits. This law
also eliminated the concept of a well-grounded claim and
superseded the decision of the United States Court of Appeals
for Veterans Claims (Court) in Morton v. West, 12 Vet. App.
477 (1999), withdrawn sub nom. Morton v. Gober, 14 Vet.
App. 174 (2000) (per curiam order), which had held that VA
could not assist in the development of a claim that was not
well grounded. This change in the law is applicable to all
claims filed on or after the date of enactment of the VCAA,
or filed before the date of enactment and not yet final as of
that date. VCAA, § 7(a), 114 Stat. at 2099-2100; see also
Karnas v. Derwinski, 1 Vet. App. 308 (1991).
The Board finds that VA's duties have been fulfilled in the
instant case. Here, the RO accorded the veteran several
examinations in relation to his claims. Although the veteran
testified at his personal hearing that he received private
medical treatment for whiplash during service, he also
indicated that he tried to obtain those records and they are
unavailable. (T. pp. 3-4). VA has no obligation to seek
evidence which the veteran acknowledges does not exist. See
Counts v. Brown, 6 Vet. App. 473 (1994). There does not
appear to be any other pertinent evidence identified by the
veteran that has not been obtained or requested by the RO.
Further, the RO advised the veteran of the evidence necessary
to substantiate his claims, including the requirements for a
grant of service connection and the applicable criteria for
higher disability ratings. Moreover, the RO specifically
addressed the applicability of the VCAA to this case by the
March 2001 Statement of the Case. The veteran has been
provided a VA examination that included a review of the
claims file and a nexus opinion. Thus, the Board finds that
the duty to assist and duty to notify provisions of the VCAA
have been fulfilled, to include the revised regulatory
provisions of 38 C.F.R. § 3.159, and that no additional
assistance to the veteran is required based on the facts of
the instant case.
General Background. The veteran was on active duty from
October 1971 to November 1987. The service medical records
reflect that he was treated on various occasions for neck and
head problems. For example, records from April 1978 note
that the veteran sought treatment after awaking with a stiff
neck, and complained of right-sided neck pain times one day.
Assessment was acute spasm.
Subsequent records from February 1979 note that the veteran
sustained a head injury at a home accident when he fell on a
car jack. It was noted that he complained of numbness at the
top of his skull, and that he had a 2 1/2 cm laceration to the
frontal scalp which was cleaned and sutured.
In April 1979, the veteran was involved in a motor vehicle
accident, after which he complained of pain to his neck, both
legs, left thoracic area, and a headache. Examination of the
neck revealed some painful sensation, but full range of
motion.
In August 1980 the veteran was treated for complaints of neck
pain with decreased range of motion secondary to the pain.
Provisional diagnosis was cervical muscle spasm. He denied
any injury or trauma. Two days after initial evaluation, the
veteran reported that he was feeling much better. Five days
later, it was noted that the veteran had not returned to the
clinic, so it was assumed that he was asymptomatic at that
time and he was discharged from therapy to his own care.
Records from October 1982 show that the veteran complained of
neck pain, which was diagnosed as cervical muscle spasm.
The veteran was involved in another motor vehicle accident in
December 1982. Following this accident, he complained of
left foot trauma, left arm trauma, and head trauma. The
veteran also sustained fracture of his right medial
malleolus.
The veteran was treated for complaints of neck and shoulder
pain in June 1983. Assessment was muscular strain.
X-rays taken of the cervical spine in September 1985 showed
that all of the cervical vertebral bodies were of normal
stature and contour with normal maintenance of intervertebral
disc spacing throughout. The pedicles, transverse process,
and posterior spinous processes did not appear abnormal.
Moreover, the relationship of C1 to C2 and of C1 to the
occiput was found to be normal, and the odontoid process was
intact. The neural foramina as delineated on the oblique
studies appeared patent throughout. In addition, there was
no evidence of a cervical rib.
The service medical records also reflect treatment on various
occasions for complaints of low back pain with sciatica,
which were ultimately attributed to degenerative disc
disease. For example, a December 1983 CT scan of the lumbar
spine resulted in an impression of degenerative disc disease
at L4-5 with a "vacuum disc phenomenon," minimal disc
bulging, and osteophyte formation but without significant
disc protrusion. Thereafter, a September 1985 X-ray of the
lumbosacral spine revealed evidence of localized and
moderately severe degenerative osteo-arthritic change
involving L4-L5, and L5-S1 area. Further, the inter L4-L5
vertebral disc space was found to be markedly narrowed.
There was also reactive sclerotic change or ebernation noted
at vertebral surfaces of the L4-L5, L5-S area.
The service medical records also note treatment on various
occasions for migratory polyarthralgias.
On his October 1987 separation examination, the veteran's
head, face, neck, and scalp were clinically evaluated as
normal. Additionally, the veteran noted various disabilities
on his concurrent Report of Medical History, including low
back pain since 1971; his head injury in 1978 when he fell on
his jack; and his right ankle fracture. However, there was
no mention of any neck/cervical spine problems at that time.
At a March 1988 VA medical examination, it was noted, in
part, that the veteran had a long-standing history, dating
back 15 years, of chronic recurrent low back pain with
radiation into the right leg at times. It was also noted
that he had been hospitalized 7 or 8 times over the years,
the most recent after sustained motor vehicle accident in
1983. No complaints were noted regarding the veteran's neck.
On examination of the veteran's head, face, and neck, no
pertinent abnormalities were noted. Diagnoses following
examination include degenerative disc disease of the
lumbosacral spine with associated osteoarthritis changes; and
status-post fracture of the right ankle with internal
fixation and residual chronic pain. No cervical spine/neck
disability was diagnosed on this examination.
Service connection was subsequently granted for, among other
things, degenerative disc disease of the lumbosacral spine
with sciatic neuropathy and residuals fracture right medial
malleolus with internal fixation by a July 1988 rating
decision. A 10 percent rating was assigned for the low back
disorder, while a noncompensable (zero percent) rating was
assigned for the right ankle disorder. Both of these ratings
were effective November 30, 1987.
Following the July 1988 rating decision, additional VA and
private medical records were added to the file which cover a
period from 1999 to 2001. These records reflect that the
veteran was treated and evaluated on various occasions for
his cervical spine, low back, and right ankle disabilities.
A January 1999 X-ray of the veteran's cervical spine revealed
some uncovertebral reactive changes at the C5-6 level causing
slight narrowing of the left foramen at that level. There
was also minor anterior spurring at C5-6, 6-7 level with
slight narrowing of the C4-5, 5-6 level. However, vertebral
body heights and alignment were normal. Overall impression
was mild spondylosis change in the cervical spine.
Later in January 1999, an MRI scan of the veteran's cervical
spine revealed loss of normal lordotic curvature, and disc
desiccation present at C5-6. However, the AP dimension scan
was normal, and there was no spinal stenosis. Spinal cord
was normal in signal intensity and size. The uncovertebral
process at C4-5, C5-6, and C6-7 were hypertrophied resulting
in indentation of the thecal sac and narrowing of the
foramina. At C5-6, there was also a bony bar which indicated
the anterior thecal sac. There were no definite disc
herniations. Overall impression was right-sided neural
foraminal narrowing as a result of uncovertebral process spur
formation. Moreover, it was reiterated that there was no
spinal stenosis or disc herniation.
The veteran was accorded a VA joints examination in March
1999. The examiner noted that the VA Form 2507 indicated
that veteran's file was not sent for review, but noted that
it did give a history of the veteran having motor vehicle
accidents times time two while in the service. The 2507 also
stated that he was hospitalized for migratory osteo-
arthritis. In addition, the examiner noted that the
examination was to evaluate the veteran's service-connected
low back and right ankle disabilities, and to provide an
opinion as to the etiology of the cervical spine condition as
to whether it stemmed from piror accident or the evidence of
osteo-arthritis.
At this examination, the veteran reported that he was being
followed for his neck complaints at the VA Outpatient Center
(VAOPC), and that he had had a recent MRI scan but did not
know the results. He also related problems regarding his
left arm of 3 to 4 years duration. As far as his back
condition, it was noted that he gave a history of having
degenerative disc disease, and that activities such as
bending or lifting would exacerbate the condition. Further,
he required frequent position changes as extended sitting or
standing was bothersome. He also had occasional pain
radiating out of the back into the right leg down to the
calf. With respect to the right ankle, it was noted that the
pain worsened with weight bearing but also with pain at rest.
On examination, it was noted that the veteran moved about
somewhat slowly with a slight limp on the right. Examination
of the back revealed that he was able to stand erect. No
spasm or tenderness was noted. Range of motion testing
showed he had flexion to 40 degrees; extension to 10 degrees;
right and left lateral bending to 15 degrees; right lateral
rotation to 25 degrees; and left lateral rotation to 20
degrees. Further, it was noted that he had pain on range of
motion testing.
Examination of his ankles showed swelling, greater on the
right. He was also found to have a cavus foot bilaterally.
In addition, the right ankle had a well-healed surgical scar
over the medial aspect of the ankle. There was tenderness of
the ankle medially and laterally. Moreover, the ankle had 5
degrees of dorsiflexion, and 25 degrees of plantar flexion,
with pain on motion.
On neurological evaluation, it was felt that the veteran had
normal strength in his upper and lower extremities. Further,
reflexes and sensation to pin prick were found to be intact
in the extremities. In addition, it was noted that the
veteran complained of back pain on sitting straight leg
raising of either leg.
Based on the foregoing, the examiners' impressions were
history of neck pain - X-rays pending - probably degenerative
changes; service-connected lumbar spine condition -
degenerative disc disease per history; and residuals of right
ankle fracture - status open reduction and internal fixation.
Further, the examiner commented that no records were sent for
review, but that he had been asked to give an opinion as to
whether the veteran's cervical spine disorder was related to
any automobile accidents he had had in the service, or
whether there was evidence of osteo-arthritis. In a
subsequent addendum, the examiner noted that he had reviewed
the January 1999 MRI scan, and summarized the results
thereof. From the information which was available, including
the MRI scan, the examiner stated that there was degenerative
spurring in the neck which could account for the veteran's
symptomatology. Otherwise, the examiner stated he had no
conclusive evidence that the veteran's neck condition stemmed
from prior vehicle accidents.
The examiner also noted on the March 1999 VA examination
that, as far as the DeLuca provisions, the veteran had pain
on motion as noted. Moreover, the examiner commented that
pain could certainly further limit functional ability during
flare-ups or with increased use of the neck, back, or ankle,
but that it was not feasible to attempt to express any of
this in terms of additional limitation of motion as these
matters could not be determined with any degree of medical
certainty.
X-rays taken of the lumbar spine in conjunction with this VA
examination revealed some disc space narrowing at the L4-5
and S-1 level with reactive osteophytes which attested to
degenerative disc there. Otherwise, there was minor spurring
anteriorly at 3-4 level. Further, the vertebral body heights
were found to be normal, and the pedicles were intact.
Overall impression was disc disease at 4-5 and 5-1.
X-rays taken of the right ankle revealed two threaded pins in
the medial distal tibia traversing the medial malleolus.
Additionally, the ankle joint space was found to be
maintained, and no arthritic changes were noted. Overall
impression was post internal fixation with remaining metallic
hardware in the distal right leg.
Records from October 2000 note that the veteran complained of
longstanding low back and cervical pain with occasional pain
down the right upper and lower extremities. It was noted
that MRIs of the neck showed degenerative joint disease,
while lumbar X-rays showed degenerative disc disease. It was
further noted that he had had no surgery on his back or neck,
and that he did not desire any in the future. Also, it was
noted that he had been to a pain specialist who wanted to
inject his back, but the veteran declined because he was
afraid they would hit the wrong nerve and he would be
paralyzed. On examination, it was noted that the veteran got
up from the chair slowly, and that he walked very slowly.
Regarding his back, it was noted that he had positive
straight leg raising bilaterally at about 20 degrees.
Assessment was chronic low back pian, degenerative joint
disease of the cervical spine, and obesity.
The veteran underwent a new VA examination for evaluation of
his cervical spine claim in December 2000. It is noted that
this examination was conducted by the same physician who
conducted the prior VA examination in March 1999. At this
examination, the examiner noted that the veteran's claims
folder, as well as his service medical records, were
available and were reviewed prior to and in conjunction with
the examination, and summarized the contents thereof.
Following examination of the veteran, the examiner diagnosed
cervical spondylosis. The examiner commented that there were
multiple entries related to neck complaints while in service,
and that various diagnoses included cervical spasm. The
examiner stated that it was likely that the veteran had had
some degree of cervical strain while in the service.
However, based upon the MRI scan and prior X-ray findings of
mild degenerative changes, the examiner could not say with a
reasonable degree of medical certainty that these were
secondary to trauma. The examiner thought that it was more
likely that these were age-related degenerative changes in
the neck.
Private medical records from A.J.C., MD, (hereinafter, "Dr.
C") dated in February 2001 note that the veteran complained
of chronic back, knee, and neck pain. Assessments at that
time included radiculopathy. Subsequent records from Dr. C
primarily concern treatment for left knee pain, with
continued findings of radiculopathy.
A March 2001 lumbar spine MRI revealed advanced degenerative
disc desiccation within the lower lumbar spine at the L4-L5
and L5-S1 levels with essentially complete loss of
intervertebral disc material. There were also subchondral
changes within the endplates related to spondylosis. The
upper lumbar spine was found to be relatively unremarkable.
In addition, vertebral body height and alignment were found
to be maintained. The signal within the vertebral body bone
marrow was within normal limits. However, at the L4-L5 level
the disc bulging/osteophyte formation resulted in a minimal
spinal canal stenosis. Nevertheless, there was no herniated
nucleus pulposus, nor severe spinal canal stenosis. There
was mild foraminal stenosis related to facet arthropathy at
the L4-L5 and L5-S1 levels. Overall impressions were
advanced spondylosis at the L4-L5 and L5-S1 levels; no
herniated disc material; and mild foraminal compromise at the
L4-L5 and L5-S1 levels as a result of disc bulging and facet
arthropathy.
At his November 2001 hearing, the veteran testified that he
had had no problems with his neck/cervical spine prior to
active service. He also testified that he was involved in
multiple motor vehicle accidents during service, and
attributed his current cervical spine disorder to these
accidents. He emphasized that after one accident he was
treated for whiplash by a private physician, and that he was
represented by an attorney as a result of the accident
itself. Unfortunately, these records were unavailable; he
contacted both the private physician and attorney, but they
no longer had any such records. The veteran also described
his in-service treatment for neck and shoulder problems, and
indicated that he had continuity of symptoms since service.
He indicated that he sought treatment from VA in 1989, but
was unsatisfied with the treatment, and did not return until
1999. In addition, he testified that he was receiving
private treatment from Dr. C, as well as treatment from VA.
Further, he described the current condition of his
neck/cervical spine. The veteran's wife testified that she
met the veteran in 1977, and that he had nothing wrong with
his neck at that time. However, she indicated that he had
complained of neck pain of increasing severity since a 1983
motor vehicle accident.
Regarding his right ankle, the veteran contended that he was
entitled to a higher rating. He testified that his ankle was
in a fixed position that made him walk almost the opposite of
pigeon-toed; that he was unable to climb; that it severely
limited his mobility; and that he was in constant pain.
Further, he indicated that the severity of his ankle pain had
increased since the most recent VA examination. Moreover,
the veteran asserted that he was entitled to a rating of 30
percent under Diagnostic Code 5270 for ankylosis. He noted
that this Code provided for a rating of 30 percent when
plantar flexion between 30 and 40 degrees, or dorsiflexion
was between 0 and 10 degrees, and that he had dorsiflexion to
5 degrees on the most recent VA examination, which was
between 0 and 10. The veteran's wife testified that the
veteran had to buy special shoes because of his ankle.
With respect to his low back disorder, the veteran testified
that he had a constant band of pain of about 4 to 6 inches
that stretched all the way across the back. He testified
that the pain did not go away even with medication; that he
spent 15 to 20 hours a day on bed rest; and that he had
sciatica about 3 to 5 times per month. Further, he testified
that he never had complete relief from back pain, even with
medication. The veteran said that the pain varied in
intensity; most of the time he would characterize the pain as
moderate, giving it a 5 on a scale of 1 to 10. He testified
that the pain radiated into his hip, down through the thigh,
to the knees, and occasionally into the feet. This was
mostly on the left, but also occurred on both sides.
Further, he testified that he experienced muscle spasms 1 to
3 times per week, and had limitation of motion. His wife
indicated that the veteran needed help in getting dressed due
to his back pain. When asked, the veteran acknowledged that
he experienced incapacitating attacks of back pain where he
could not function about 3 to 5 times per month, with
duration of 1 to 3 days. He described the pain as a burning
type pain.
Following his hearing, the veteran submitted a statement from
Dr. C, dated in December 2001, in support of his cervical
spine claim. Dr. C noted that he had reviewed the veteran's
military records, and that there were several items that
mentioned trauma with associated neck pain while on active
duty. Dr. C stated that the veteran's chronic cervical spine
condition could be a result of that trauma. Further, Dr. C
stated that other causes of the veteran's condition maybe
less likely.
Also on file is medical treatise evidence in the form of
articles from the internet concerning gout and pseudogout.
I. Service Connection
Legal Criteria. Service connection may be established for a
disability resulting from disease or injury incurred in or
aggravated by service. 38 U.S.C.A. §§ 1110, 1131;
38 C.F.R. § 3.303. Evidence of continuity of symptomatology
from the time of service until the present is required where
the chronicity of a condition manifested during service
either has not been established or might reasonably be
questioned. 38 C.F.R. § 3.303(b). Regulations also provide
that service connection may be granted for any disease
diagnosed after discharge, when all the evidence, including
that pertinent to service, establishes that the disability
was incurred in service. 38 C.F.R. § 3.303(d).
In the case of a claim for disability compensation, the
assistance provided to the claimant shall include providing a
medical examination or obtaining a medical opinion when such
examination or opinion is necessary to make a decision on the
claim. An examination or opinion shall be treated as being
necessary to make a decision on the claim if the evidence of
record, taking into consideration all information and lay or
medical evidence (including statements of the claimant)
contains competent evidence that the claimant has a current
disability, or persistent or recurring symptoms of
disability; and indicates that the disability or symptoms may
be associated with the claimant's act of service; but does
not contain sufficient medical evidence for VA to make a
decision on the claim. See § 3 of the VCAA (codified as
amended at 38 U.S.C. § 5103A(d) (West Supp. 2001)); 66 Fed.
Reg. at 45626-45627, 45631 (to be codified as amended at
38 C.F.R. § 3.159(c)(4)); see also Hickson v. West, 12 Vet.
App. 247, 253 (1999) ("In order to prevail on the issue of
service connection . . . there must be medical evidence of a
current disability [citation omitted]; medical or, in certain
circumstances, lay evidence of in-service incurrence or
aggravation of a disease or injury; and medical evidence of a
nexus between the claimed in-service disease or injury and
the present disease or injury."); Pond v. West, 12 Vet. App.
341, 346 (1999) ("Generally, to prove service connection, a
claimant must submit (1) medical evidence of a current
disability, (2) medical evidence, or in certain circumstances
lay testimony, of in-service incurrence or aggravation of an
injury or disease, and (3) medical evidence of a nexus
between the current disability and the in-service disease or
injury.").
Analysis. Initially, the Board notes there is no evidence
that the veteran was diagnosed with arthritis/degenerative
changes in his cervical spine either during service or within
the first post-service year. Accordingly, he is not entitled
to a grant of service connection on a presumptive basis.
38 C.F.R. §§ 3.307, 3.309.
In this, and in other cases, only independent medical
evidence may be considered to support Board findings. The
Board is not free to substitute its own judgment for that of
such an expert. See Colvin v. Derwinski, 1 Vet. App. 171,
175 (1991).
Nothing on file shows that the veteran has the requisite
knowledge, skill, experience, training, or education to
render a medical opinion. See Espiritu v. Derwinski, 2 Vet.
App. 492, 494 (1992). Consequently, while he is qualified as
a lay person to describe his symptomatology, he is not
qualified to diagnose the disability, or provide a competent
medical opinion regarding the etiology thereof.
The Board notes that there is evidence both for and against
the veteran's claim of service connection for a cervical
spine disorder. For example, the service medical records
clearly show that the veteran was treated on multiple
occasions during service, and diagnoses at that time include
cervical spine spasm. Moreover, the veteran testified under
oath that he had no neck/cervical spine problems prior to
service, and indicated that he had continuous problems since
service. Similarly, the veteran's wife testified that the
veteran did not exactly have a neck problem prior to one of
his in-service motor vehicle accidents. However, X-rays
taken in September 1985, during active service, indicated
that the cervical spine was normal. Further, there were no
complaints of neck problems on the veteran's October 1987
separation examination, or the March 1988 VA examination. In
fact, the first competent medical evidence of a chronic
cervical spine disorder are the January 1999 X-rays and MRI
report.
The Board also notes that there are competent medical
opinions both for and against a finding that the veteran's
current cervical spine disorder is causally related to active
service. Dr. C, in his December 2001 statement, noted that
he had reviewed the veteran's military records, including
several items that mentioned trauma with associated neck
pain, and opined that the veteran's chronic cervical spine
condition could be (emphasis added) a result of that trauma.
Further, Dr. C stated that other causes of the veteran's
condition maybe (emphasis added) less likely. Conversely,
the physician who conducted the VA examinations in March 1999
and December 2000, noted on the March 1999 examination that
there was degenerative spurring in the neck, but otherwise,
he had no conclusive evidence that the veteran's neck
condition stemmed from prior vehicle accidents. On the
subsequent December 2000 VA examination, which included
review of the veteran's claims folder and service medical
records, the examiner commented that there were multiple
entries related to neck complaints while in service, and that
various diagnoses included cervical spasm. Thus, it was
likely that the veteran had had some degree of cervical
strain while in the service. However, based upon the MRI
scan and prior X-ray findings of mild degenerative changes,
the examiner could not say with a reasonable degree of
medical certainty that these were secondary to trauma. The
examiner thought that it was more likely that these were age-
related degenerative changes in the neck.
The record reflects that Dr. C has treated the veteran since
at least the beginning of 2001, while the VA examiner
evaluated the veteran on two separate occasions. Also, both
physicians noted that they had reviewed the veteran's service
medical records. Thus, both of them were familiar with the
current nature and severity of the veteran's cervical spine
disorder, as well as his past history. However, unlike the
VA examiner, Dr. C did not list which of the veteran's
service medical records he had reviewed. Further, Dr. C's
does not provide a rationale in support of his opinion. The
VA examiner did provide a rationale in support of his
opinion. In essence, the VA examiner stated that the mild
degenerative changes shown by the MRI and X-ray findings
indicated that it was more likely that the disability was
age-related.
The Board is aware of the fact that the VA examiner arguably
used the wrong standard in initially addressing the nexus
question; he opined that he could not say with a reasonable
degree of medical certainty (emphasis added) that the
degenerative changes of the cervical spine were secondary to
trauma, when the standard (reasonable doubt) is whether it is
at least as likely as not (50 percent or more likelihood),
but the physician went on to cure this defect by opining that
age was the most likely cause of the pathology in question,
thereby indicating that the contended cause, in-service
trauma, was less likely than not. Dr. C only indicated that
it is possible that the current disability is related to in-
service trauma. The same physician also stated that other
causes were less likely than trauma, which arguably then
supports the claim, but aside from the use of the speculative
word possible, unlike the opinion of the VA examiner, Dr. C
did not provide a rationale in support of his opinion. The
VA examiner indicated that mild degenerative changes shown by
the MRI and X-ray findings were more consistent with age
rather than remote trauma. Moreover, while the private
examiner's opinion consisted of two sentences and merely
noted that "military records were reviewed", the VA
examiner specifically summarized the pertinent findings in
the service medical records. While Dr. C has recently
treated the veteran, the VA examiner has evaluated the
veteran twice (March 1999 and December 2000) and, on both
occasions, a thorough history and physical examination were
obtained. The VA nexus opinion was immediately preceded by
such a thorough evaluation. For these reasons, the Board
finds that the opinion of the VA examiner is entitled to more
weight in the instant case. It is also pertinent to again
note that the veteran's separation examination was negative
for any findings indicative of a cervical spine disability;
clinical evaluation of his neck and musculoskeletal system,
to include the cervical spine, was completely negative for
any findings suggestive of a neck or cervical spine disorder
at that time. Moreover, when the veteran initially filed
claims for service connection for multiple disabilities in
December 1987 (to include low back, right ankle and skin
disorders, which were granted), he did not indicate that he
had a neck or cervical spine disorder at that time or
subsequently until he filed his current claim in January
1999. In considering all of the relevant evidence of record,
the Board finds that the preponderance of the evidence is
against the claim.
As the preponderance of the evidence is against the claim,
the benefit of the doubt doctrine is not for application in
the instant case. See generally Gilbert v. Derwinski, 1 Vet.
App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir.
2001).
II. Increased Ratings
Disabilities must be reviewed in relation to their history.
38 C.F.R. § 4.1. Other applicable, general policy
considerations are: interpreting reports of examination in
light of the whole recorded history, reconciling the various
reports into a consistent picture so that the current rating
may accurately reflect the elements of disability, 38 C.F.R.
§ 4.2; resolving any reasonable doubt regarding the degree of
disability in favor of the claimant, 38 C.F.R. § 4.3; where
there is a question as to which of two evaluations apply,
assigning a higher of the two where the disability picture
more nearly approximates the criteria for the next higher
rating, 38 C.F.R. § 4.7; and, evaluating functional
impairment on the basis of lack of usefulness, and the
effects of the disabilities upon the person's ordinary
activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski,
1 Vet. App. 589 (1991).
In evaluating disabilities of the musculoskeletal system,
additional rating factors include functional loss due to pain
supported by adequate pathology and evidenced by the visible
behavior of the claimant undertaking the motion. 38 C.F.R.
§ 4.40. Inquiry must also be made as to weakened movement,
excess fatigability, incoordination, and reduction of normal
excursion of movements, including pain on movement.
38 C.F.R. § 4.45. The intent of the schedule is to recognize
painful motion with joint or periarticular pathology as
productive of disability. It is the intention to recognize
actually painful, unstable, or malaligned joints, due to
healed injury, as entitled to at least the minimum
compensable rating for the joint. 38 C.F.R. § 4.59. See
also DeLuca v. Brown, 8 Vet. App. 202 (1995).
The degree of impairment resulting from a disability is a
factual determination and generally the Board's primary focus
in such cases is upon the current severity of the disability.
Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v.
Brown, 6 Vet. App. 396, 402 (1994).
With regard to the veteran's request for an increased
schedular evaluation, the Board will only consider the
factors as enumerated in the applicable rating criteria. See
Massey v. Brown, 7 Vet. App. 204, 208 (1994); Pernorio v.
Derwinski, 2 Vet. App. 625, 628 (1992).
A. Low Back
Legal Criteria. The record reflects that in evaluating the
veteran's low back disorder, the RO considered the criteria
found at 38 C.F.R. § 4.71a, Diagnostic Codes 5292, 5293, and
5295.
Diagnostic Code 5292 provides for the evaluation of
limitation of motion of the lumbar spine. When the
limitation of motion of the lumbar spine is slight, a 10
percent rating is provided. When the limitation of motion is
moderate, a 20 percent rating is provided. When the
limitation of motion is severe, a rating of 40 percent is
warranted. 38 C.F.R. § 4.71a.
Diagnostic Code 5293 provides for evaluation of
intervertebral disc syndrome. Intervertebral disc syndrome is
assigned a noncompensable rating when it postoperative,
cured. A 10 percent evaluation is assigned when it is mild.
Moderate symptoms with recurring attacks are assigned a 20
percent evaluation. Severe symptoms, with recurring attacks
and intermittent relief are assigned a 40 percent evaluation.
Pronounced symptoms, that are persistent and compatible with
sciatic neuropathy with characteristic pain and demonstrable
muscle spasm, absent ankle jerk, or other neurological
findings appropriate to the site of the diseased disc, with
little intermittent relief are assigned a 60 percent
evaluation. The maximum evaluation available under
Diagnostic Code 5293 is 60 percent. 38 C.F.R. § 4.71a.
Diagnostic Code 5295 provides for the evaluation of
lumbosacral strain. With characteristic pain on motion, a
rating of 10 percent is provided. With muscle spasm on
extreme forward bending, loss of lateral spine motion,
unilateral, in a standing position, a rating of 20 percent is
provided. When severe with listing of the whole spine to
opposite side, positive Goldthwait's sign, marked limitation
of forward bending in a standing position, loss of lateral
motion with osteoarthritic changes, or narrowing or
irregularity of the joint space, or some of the above with
abnormal mobility on forced motion, a rating of 40 percent is
provided. 38 C.F.R. § 4.71a.
Analysis. In the instant case, the Board finds that the
veteran is entitled to a 40 percent rating for his low back
disorder.
The medical records, as well as the veteran's own statements,
clearly show that he experiences constant low back pain as a
result of his service-connected disability, as well as
resulting functional impairment such as limitation of motion.
See 38 C.F.R. §§ 4.40, 4.45, 4.59. For example, range of
motion testing at the March 1999 VA examination showed had
flexion to 40 degrees; extension to 10 degrees; right and
left lateral bending to 15 degrees; right lateral rotation to
25 degrees; and left lateral rotation to 20 degrees.
Further, it was noted that he had pain on range of motion
testing. More importantly, the examiner commented, in part,
that the pain could certainly further limit functional
ability during flare-ups or with increased use of the back.
The Board notes that while the veteran testified that he
experienced back spasms, there was no objective medical
evidence of spasms on the March 1999 VA examination. The
examiner also noted that the veteran was able to stand erect.
Moreover, the examiner commented that even though the veteran
would have greater functional limitation during flare-ups or
with increased use, it was not feasible to attempt to express
any of this in terms of additional limitation of motion as
these matters could not be determined with any degree of
medical certainty.
However, the Board also notes that the veteran testified at
this personal hearing that he had moderate pain on a regular
basis, with incapacitating episodes 3 to 5 times per month,
of 1 to 3 days duration. He also experienced sciatica five
times per month. In addition, his wife indicated that he
needed help getting dressed due to his back pain.
Taking into consideration the veteran's complaints of pain,
and resolving the benefit of the doubt in his favor, the
Board finds that the symptomatology of his service-connected
low back disorder more nearly approximates that of severe
symptoms of intervertebral disc syndrome, with recurring
incapacitating attacks and intermittent relief therefrom.
Consequently, he is entitled to the next higher rating of 40
percent under Diagnostic Code 5293. 38 C.F.R. §§ 3.102, 4.3,
4.7, 4.40, 4.45, 4.59, 4.71a.
The Board also finds that the medical evidence does not
support a finding that the veteran experiences pronounced
symptoms of intervertebral disc syndrome, to include
persistent symptoms of demonstrable muscle spasm and absent
ankle jerk. As noted above, while the veteran testified he
experienced muscle spasms, there was no demonstrable spasm on
the March 1999 VA examination. Similarly, there is no
medical evidence of absent ankle jerk. In addition, the
veteran's testimony indicates he experiences intermittent,
rather than persistent symptoms of sciatic neuropathy.
Further, on the most recent MRI of the lumbar spine conducted
in March 2001, even though there was evidence of advanced
spondylosis at the L4-L5 and L5-S1 levels, there was no
herniated nucleus pulposus, nor severe spinal canal stenosis.
Moreover, there was only mild foraminal compromise at the L4-
L5 and L5-S1 levels as a result of disc bulging and facet
arthropathy. Consequently, the Board concludes that the
veteran does not meet or nearly approximate the criteria for
a rating in excess of 40 percent under Diagnostic Code 5293;
the criteria for the next higher rating of 60 percent are not
met.
As noted above, the RO has also considered the applicability
of Diagnostic Codes 5292 and 5295. However, neither of these
Codes provide for a rating in excess of 40 percent.
For the reasons stated above, the Board concludes that the
veteran is entitled to an increased rating of 40 percent
under 38 C.F.R. § 4.71a, Diagnostic Code 5293.
B. Right Ankle Fracture
Legal Criteria. Under VA regulations, disabilities of the
ankle are evaluated under Diagnostic Codes 5270 to 5274.
38 C.F.R. § 4.71a.
Under Diagnostic Code 5270, a 20 percent rating is warranted
for ankylosis of the ankle in plantar flexion less than 30
degrees; ankylosis in plantar flexion between 30 and 40
degrees, or in dorsiflexion between 0 and 10 degrees warrants
a 30 percent rating. Ankylosis of the ankle in plantar
flexion at more than 40 degrees, or in dorsiflexion at more
than 10 degrees, or with an abduction, adduction, inversion
or eversion deformity warrants a 40 percent evaluation. 38
C.F.R. § 4.71a.
Under Diagnostic Code 5271 moderate limitation of ankle
motion is assigned a 10 percent rating. Marked limitation of
ankle motion warrants a 20 percent rating. 38 C.F.R. §
4.71a.
Full range of ankle dorsiflexion is from zero to 20 degrees
and full range of ankle plantar flexion is from zero to 45
degrees. 38 C.F.R. § 4.71, plate II.
Diagnostic Code 5272 provides that ankylosis of the
subastragalar or tarsal joint in good weight bearing position
a 10 percent rating is assigned. Ankylosis of the
subastragalar or tarsal joint in poor weight bearing position
warrants a 20 percent rating. 38 C.F.R. § 4.71a.
Malunion of the os calcis or astragalus with moderate
deformity is evaluated as 10 percent disabling. When there
is marked deformity it is evaluated as 20 percent disabling.
38 C.F.R. § 4.71a.
Diagnostic Code 5274 provides that a 20 percent rating is to
be assigned when there has been an astragalectomy.
Analysis. In the instant case, the Board finds that the
preponderance of the evidence is against the veteran's claim
of entitlement to an increased rating for his right ankle
disorder, currently rated as 20 percent disabling.
The record reflects that the RO assigned the current 20
percent rating based upon marked limitation of motion under
38 C.F.R. § 4.71a, Diagnostic Code 5271. Further, the Board
finds that the evidence clearly shows that the veteran's
right ankle disorder is manifest by pain and resulting marked
limitation of motion. However, Diagnostic Code 5271 does not
provide for a rating in excess of 20 percent. Thus, it is
axiomatic that this Code is inapplicable to the veteran's
current claim for a rating in excess of 20 percent.
The veteran contended at his personal hearing that he is
entitled to a rating of at least 30 percent under Diagnostic
Code 5270, for ankylosis. Granted, the March 1999 VA
examination showed that the veteran's ankle had 5 degrees of
dorsiflexion, and 25 degrees of plantar flexion, with pain on
motion. However, there is no competent medical evidence on
file which diagnoses the veteran as having ankylosis of the
right ankle, to include as a residual of his in-service
fracture. Consequently, Diagnostic Code 5270 does not apply
in the instant case.
With respect to the other potentially applicable criteria
found at Diagnostic Codes 5272 to 5274, the Board notes that
none of these Codes provides for a rating in excess of 20
percent. Moreover, there is no medical evidence that the
veteran has any of the requisite manifestations required by
these Codes. Thus, they are inapplicable in the instant
case.
In making the above determination, the Board was cognizant of
the requirements of 38 C.F.R. §§ 4.40, 4.45, and 4.59, as
well as the veteran's account of right ankle pain. The Board
was also cognizant of the fact that he indicated that the
pain had increased in severity since the last examination.
However, as noted above, the only potentially applicable
Diagnostic Code for providing a rating in excess of 20
percent is 5270, which requires that the service-connected
disability be manifested by ankylosis. Since the veteran's
service-connected right ankle disorder is not manifested by
ankylosis, then the Board must conclude that the record does
not contain objective evidence by which it can be factually
ascertained that there is or would be any functional
impairment attributable to the veteran's complaints of right
ankle pain which would warrant a schedular rating in excess
of the 20 percent evaluation currently in effect. There is
no objective evidence to show that pain, flare-ups of pain,
fatigue, weakness, incoordination, excess movement, or any
other finding results in additional functional impairment to
a degree that would support or more nearly approximate
(38 C.F.R. § 4.7) a finding of ankylosis of the right ankle.
Therefore, the factors to be considered pursuant to 38 C.F.R.
§§ 4.40, 4.45, and 4.59 do not provide any basis for a rating
in excess of 20 percent in the instant case. Moreover,
inasmuch as there is no medical evidence that the veteran's
service-connected disability is manifest by ankylosis, there
is no reasonable possibility that an additional examination
would substantiate the veteran's claim.
There being no other potentially applicable criteria, the
Board must conclude that the preponderance of the evidence is
against the veteran's claim of entitlement to a rating in
excess of 20 percent for his right medial malleolus fracture
with internal fixation, and it must be denied. As the
preponderance of the evidence is against the claim, the
benefit of the doubt doctrine is not for application. See
generally Gilbert, supra; Ortiz, supra.
ORDER
Entitlement to service connection for a cervical spine
disorder is denied.
Entitlement to an increased rating of 40 percent for
degenerative joint disease of the lumbosacral spine with
sciatic neuropathy is granted, subject to the law and
regulations applicable to the payment of monetary benefits.
Entitlement to an increased rating for residuals of a right
medial malleolus fracture with internal fixation, currently
evaluated as 20 percent disabling, is denied.
R. F. WILLIAMS
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.